Concern over extended role for ‘legal officers’

Solicitors have expressed concerns over the quality of justice at employment tribunals if ‘legal officers’ take over the role of judges and hear interlocutory applications.

In his review of employment tribunal rules, Mr Justice Underhill said the role of legal officers was a separate issue and should be decided by government.

In a consultation paper on the review launched last month, BIS officials said the Employment Tribunals Act 1996 included provisions that would permit interlocutory functions to be dealt with by a legal officer.

“However, until now, the procedural rules made under that Act have not included reference to legal officers, and so they have not been established as part of the tribunals system.

“Consistent with the wider tribunals system, we propose to include specific provision in the rules of procedure to allow legal officers to undertake case management functions in employment tribunals.”

BIS is still to decide whether legal officers would be lawyers or simply experienced administrative staff.

Jo Davis (pictured), head of employment at BP Collins, said anything that eased the process of bringing a claim to a tribunal was welcome.

“Some interlocutory decisions have suffered because of the pressure that tribunals are under,” Davis said.

“We have had to seek reviews where the documents are simply not read properly.”

Davis said that one occasion her firm had been forced to go back to a judge three times to get the papers read properly.

She added: “Everything in the tribunals seems to be being reduced at the moment. Single judges are sitting instead of panels of three people. We do need to keep an eye on quality.”

Rob Riley, partner at Addleshaw Goddard in Leeds, asked: “What training will be available for these officers? There is a lack of talent in the system.

“Using legal officers will raise questions around quality and could make things more of a lottery.”

Elsewhere in the consultation, Mr Justice Underhill recommended that litigants who used a lay representative, rather than a lawyer, should be able to claim costs where the other party had acted unreasonably.

BIS officials said restrictions on parties who did not engage a legal representative were “unfair and contrary to the overarching aim of employment tribunals” that the absence of legal advice should not put people at a disadvantage.

Officials said costs paid to lay representatives, which could include trade union officials or HR consultants, would have to be limited and might best be calculated using a capped hourly rate.

“We would expect that costs for lay representatives would be lower than that for lawyers, in that the service and advice that parties have received in these cases cannot be equated with the service and advice that would have been received from a solicitor.”